Case Watch: The Sarrazin Affair and the Limits of Free Expression

In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

Freedom of expression, which enables public debate of controversial issues, is one of the pillars of a functioning democracy. But, like all liberties, freedom of expression must be weighed against other rights, including the right to be free from discrimination.

In a published interview Sarrazin talked about Germany’s social “lower classes” and immigrant communities, stating that those who are “not productive” would have to “disappear over time” to create a city of the “elite.” While Sarrazin positively characterized the intelligence, productivity, and integration of some immigrant communities, he claimed that a large proportion of the Turkish population in Germany had “no productive function”—except for the fruit and vegetable trade—and that they were neither “able nor willing” to integrate into German society and instead encouraged a collective mentality that is “aggressive and ancestral.”

Sarrazin further claimed that Turkish immigrants were not making any effort to “reasonably educate” their children and were constantly producing “new little headscarf girls.” He claimed that the Turks would “conquer Germany” through higher birthrates, and that he did not have to accept anybody who “lives off the state and rejects this very state.” Sarrazin characterized the problems of immigration and integration as a “Turkish problem” and called for ending the influx of Turkish immigrants and stopping social welfare payments to the “lower class.”

In response, TBB filed a criminal complaint against Sarrazin, claiming that his statements constituted incitement to hatred because they presented the Turkish population as a group of individuals who live at the expense of the state and do not have a right to be in Germany.

The prosecutor’s office reviewed Sarrazin’s statements against the criminal “incitement to hatred” and “insult” laws, but found no liability based on freedom of expression and concluded that the statements were not capable of disturbing the public peace—a necessary criterion for “incitement to hatred” under the criminal code. In addition the prosecutor found that Sarrazin’s statements were a “contribution to the intellectual debate in a question that [was] very significant for the public.”

TBB was not satisfied with this investigation and complained to the UN committee, arguing that Germany had failed to fulfill its positive obligation to take effective action against reported statements of racial discrimination. In response Germany noted that while it disapproved of Sarrazin’s statements, they were nonetheless protected by the right to freedom of expression and did not amount to incitement of racial hatred or characterize segments of the population as inferior. It further argued that its criminal code provisions on “incitement to hatred” and “insult” effectively translated its CERD obligations into domestic law and that it had conducted a proper investigation into TBB’s complaints.

The committee disagreed. In an opinion issued on February 26 this year, it found that Germany’s failure to effectively investigate Sarrazin’s racist statements violated Articles 2, 4, and 6.

In reaching its decision, the committee first found that Sarrazin’s statements fell within the ambit of Article 4. They contained ideas of racial superiority, depicted negative generalizations, and included incitement to racial discrimination designed to deny Turkish immigrants access to social welfare and generally prohibit the influx of immigrants—save for highly qualified individuals.

Second, the committee found that Sarrazin’s statements were not protected by the “due regard” for freedom of speech. The convention provides that the exercise of freedom of expression carries special duties and responsibilities, in particular the obligation not to disseminate racist ideas. CERD requires states to protect their populations not only against incitement to racial hatred, but also against dissemination of ideas based upon racial superiority or hatred. While affirming the importance of the freedom of expression, the committee found that Sarrazin’s statements amounted to dissemination of ideas based upon racial superiority or hatred and contained elements of incitement to racial discrimination.

Third, it found that Germany’s decision not to prosecute Sarrazin was manifestly arbitrary and amounted to a denial of justice. By concentrating on the fact that Sarrazin’s statements did not amount to incitement of racial hatred or disturbing the public peace, Germany failed to carry out an effective investigation into whether his statements amounted to dissemination of ideas based upon racial superiority or hatred.

Finally the committee concluded that Germany had not adequately translated its obligations under CERD into domestic legislation; in particular, the requirement that a statement be capable of disturbing the public peace was unnecessarily narrow.

The committee recommended that Germany review its policy and procedures for prosecution of cases of dissemination of ideas of ethnic superiority and incitement to racial discrimination and to widely publicize the opinion.

Curtailing freedom of expression, especially through criminalization of certain types of speech, is a controversial step. Indeed, the decision prompted a strong dissent from the United States’ committee member, who argued that the “Convention does not require the criminal prosecution of every expression of ideas of racial superiority or every statement inciting to racial discrimination.” In his opinion, Germany was well within its discretion when it chose not to prosecute. The dissent also noted that Article 4’s prohibition on disseminating ideas based on racial superiority or hatred—without reference to incitement to hatred or violence—is unusual among human rights instruments. Given the concern that this prohibition caused during the convention’s drafting, the dissent argued that “any construction of the term “racial superiority” should be heedful of the need to safeguard the free exchange of opinions and ideas on matters of public concern.”

The question of whether to criminalize hate speech and incitement has been the subject of international debate, prompting policy papers on the topic and a statement from the UN Special Rapporteur on Freedom of Expression arguing that free speech is central to deterring hate speech. While the balance between different freedoms is rarely clear, one thing is: protecting communities from discrimination is imperative, but the tools one employs in that pursuit should be carefully chosen.